Rosenberger v. University of Virginia - Oral Argument

Argument of Michael W. McConnell

Chief Justice Rehnquist: We'll hear argument now in Number 94-329, Ronald W. Rosenberger v. The Rector and Visitors of the University of Virginia.

Mr. McConnell.

Mr. McConnell: Mr. Chief Justice, and may it please the Court:

It is common ground in this case that if a group of students satisfied all of the objective eligibility requirements to form a student newspaper, or in the terms of the university guidelines, a student news, information, opinion, entertainment, or academic communications media group, that they could not be excluded from funding under the guidelines simply because they espouse a controversial or otherwise political, ideological, philosophical position of a secular sort.

Thus, if my clients this morning were the SDS, if they were vegetarians, if they were members of the Federalist Society, or black separatists, or whatever, there would be no need to be here this morning.

Justice Scalia: What if they were Republicans?

Justice Stevens: That's just the question I was going to ask.

[Laughter]

Mr. McConnell: Well, then I'll ask Democrats, just to make it--

[Laughter]

Your Honor, even if they were Republicans or Democrats, they would not be excluded, because under the university's guidelines, an otherwise eligible organization is not excluded merely because it espouses political viewpoints within its activities, no matter how unpopular those may be.

Your Honor, this case is different because my clients are not the SDS or the Republicans, they are... their orientation is religious.

Justice Stevens: You have to help me a little more on this question.

I thought... I don't have it in front of me.

I thought there was a provision that did exclude political groups such as Republicans and Democrats.

Am I wrong on that?

Mr. McConnell: Your Honor, there are two relevant exclusions for political groups.

One of those is for political organizations, and it might very well be that an organization set up affiliated with the Republican or Democratic Party could be excluded at the University of Virginia on that ground.

Of course, that is not applicable here.

My clients are not affiliated with any national or other religious organization.

Justice Stevens: Would not the rule that you are arguing for entitle such a political group also to get funding?

Mr. McConnell: Your Honor, the guidelines expressly provide, and I refer to page 66... 65 to 66a of the appendix to the petition.

The rules specifically provide that these restrictions on funding political activities are not intended to preclude funding of any otherwise eligible student organization which espouses particular positions or ideological viewpoints, including those that may be unpopular, or that are not generally accepted.

As I understand this rule, Your Honor, the point is that if there's an organization that is simply engaging in electioneering, or lobbying, which are much more narrow... much narrower categories than the espousal of a viewpoint, that such groups can be excluded, but groups cannot be excluded because they are expressing even controversial political viewpoints in a student newspaper.

Justice Scalia: As I understand it, Mr. McConnell, there are two bases for exclusion of religious publications.

One is if the organization practices religion... I mean, if it's a prayer group, or something like that... and then there's a separate one if the publication exhibits religious belief?

Mr. McConnell: That's right, Your Honor, and there's been no--

Justice Scalia: And the latter does not apply to the political exclusion.

If you exhibit the belief of a Republican, your publication is not necessarily excluded, although if you are a Republican, Young Republicans or something like that, you would be excluded.

Mr. McConnell: --That's exactly correct.

Justice Scalia: Whereas for religions, if you are either a religious group or you exhibit religious belief, you're out.

Mr. McConnell: That's correct, and there's been no claim in this case that my clients are a religious organization.

Justice Stevens: Mr. McConnell, the religious provision to which Justice Scalia refers is an activity which primarily promotes or manifests a political belief in and about a deity or an ultimate reality.

That's the provision you say is the equivalent of exhibiting.

Mr. McConnell: Exactly.

Justice Stevens: Yes, I see, and the political one is an organization primarily involved, and so forth and so on.

I don't see the dramatic difference between the two provisions that you rely on.

Mr. McConnell: The difference is the language that I was just reading a moment ago, which excludes from the definition of political activities the mere, 65a to 66a, very top of the page of 66a, are not intended to include funding, preclude funding of any otherwise eligible student organization which 3) espouses particular positions or ideological viewpoints.

Unknown Speaker: Yes, but they're not otherwise eligible, if they fall within the political organization--

Mr. McConnell: By otherwise eligible, I assume Your Honor, that they're referring to the criteria for being a news, information, opinion, entertainment, or academic media group.

I might add here, I'm not sure that this is--

Justice Scalia: --You acknowledge that the Young Republicans would still be excluded, that that exception would not let the Young Republicans run a newspaper that espouses Republican views.

They would be excluded as a Republican political organization, no?

Mr. McConnell: --Your Honor, whether the... the Young Republicans would presumably be a political organization, but that is not... my clients have not been excluded because they are a religious organization.

They are not a religious organization.

Justice Scalia: I understand.

I'm just asking about the Young Republicans.

You acknowledge the Young Republicans would not be able to publish a magazine of Republican viewpoints.

Mr. McConnell: Under the guidelines, that's exactly correct.

Justice Scalia: But any other organization, if it's not a Republican organization, would be?

Mr. McConnell: That's right, and the very same students could get together and put out a newspaper.

In fact, the Virginia Advocate, which is a funded organization, looks very much like the sort of newspaper the Young Republicans would publish, and that is funded.

Justice Stevens: Let me make sure I understand you.

You agree that a Republican publication would be prohibited by the guidelines.

Do you also agree that it may constitutionally be prohibited by the guidelines?

Mr. McConnell: Your Honor, the line that we believe that this Court's cases establish, and that the First Amendment imposes, is a line that prohibits viewpoint discrimination.

If the university is excluding all political organizations whatever their orientation or persuasion, our position is that that is not unconstitutional.

Let me just point--

Justice Souter: Well, do you agree that it would not be unconstitutional to deny funding to a publication that says, vote Republican in the next election?

Mr. McConnell: --Your Honor, if that rule were in fact applied to all newspapers, that prohibited all endorsements of political candidates, we would not claim that that is unconstitutional.

Of course, that is not the guideline.

In fact, student newspapers regularly endorse candidates for office, and let me point out here that this case is extraordinarily--

Justice Souter: Those other newspapers are not affiliated with an identified partisan organization, I suppose, or at least in theory they're not.

Mr. McConnell: --Just as my clients are not identified with any religious denomination or other organization.

Let me point out--

Justice Kennedy: Suppose... just on this one point, suppose the religious newspaper engaged in soliciting members, proselytizing, coupons to fill out and return that are contained in the newspaper, does that change the case, or make it a more difficult case?

Mr. McConnell: --I don't know, Your Honor.

I assume that any student activity, and part of the student activity is usually recruiting other members, and I wouldn't think that Wide Awake would be any more precluded from inviting others to join in Wide Awake's activity than any other student group, and of course--

Justice Kennedy: That cannot be equated with the political restrictions against campaigning.

Mr. McConnell: --Well, again I don't think that the Virginia Advocate is precluded from trying to persuade students to join the Virginia Advocate, or to join in its causes, and--

Justice Souter: Yes, but the Virginia Advocate is not a church.

Mr. McConnell: --Wide Awake is also not a church, Your Honor.

Justice Souter: No, but I mean, going back to Justice Kennedy's question.

If they were circulating coupons, sign up for membership in the First Presbyterian Church, that sort of thing.

Mr. McConnell: Well, Your Honor--

Justice Souter: It's one thing... it seems to me the distinction is made, it's one thing to recruit members of one's organization, as such, and it's another thing to recruit adherence to God, to religious tenets.

Mr. McConnell: --Your Honor, if you look at Wide Awake magazine--

Justice Souter: You admit the distinction, don't you?

Mr. McConnell: --Your Honor, I'm not at all sure that a distinction of that sort would be administrable.

I'm not... I don't know how you can tell the difference.

There... one is not converted to membership in God.

There is a world view which is theistic in nature.

One is either convinced of the truth of that world view, or one is not.

Just as there is a Marxist world view, there is a libertarian world view, there are a number of world views, and one is either convinced of the truth of those world views or not, and those world views have application to numerous issues, such as the questions that are addressed in this magazine.

Justice O'Connor: Well, Mr. McConnell, may I ask you a question that I think fits into this same line of inquiry?

You argue for an overarching principle of neutrality, and you say, if we will look at the program and see if it's neutral, that should be the test, and do you think that means that Government must never single out religion in legislating, or do you think that the constitutionality of a program under the Establishment Clause depends on its effects, its overall effects with respect to religion?

Mr. McConnell: Well, Your Honor, I can imagine situations in which the Government might be operating according to formally neutral criteria that have such disproportionate effects that one suspects that there's a religious gerrymander going on.

Justice O'Connor: Would some of our school funding cases fall in that category, where the Court spoke in terms of well, if we support this, 95 percent of the schools that will benefit are religious schools, and so forth?

Mr. McConnell: Yes, Your Honor, and in each of the parochial school cases the Court went out of its way to point out that the category, ostensibly neutral, private schools, is a category that in fact contained overwhelmingly religious schools, and more than that, overwhelmingly religious schools of one particular religious denomination.

And I think that those cases can be understood as the Court's reaction to... not to aid which is general in nature to viewpoints of all sorts, but rather to aid which the legislature knew, everyone knew, this Court knew, was being enacted in response to the needs of a particular... to religion in general, but especially to one particular religious denomination.

Justice O'Connor: Well, so if the student publication in question were really a mechanism of getting more members for the Presbyterian Church, for example, then you think it's appropriate to look at the effects of the publication?

Mr. McConnell: Well, Your Honor no.

I think that it's appropriate to look at the effects of the Government's action.

That is, if the Government is drawing categories that have disproportionate effect, thus leaving us room to suspect that there's a religious gerrymander going on, we should look at effects in that sense, but just as in Widmar v. Vincent, this Court was not concerned with the students benefiting from free facilities at the university might try to gain members, or recruit people to the Presbyterian Church, or whatever.

All that mattered to this Court was that all groups, all student groups at the University of Missouri were being given an equality of free speech rights, and that is our position here.

I might... on this... on the question of the political groups, I just want to remind the Court of one thing.

I'm not sure that our position depends in any sense upon whether the university is allowing or disallowing the Republicans, because remember in Lamb's Chapel, two terms ago, a unanimous decision of this Court that the school... that the policy at issue, there, expressly allowed political activities as well as... and excluded religious activities.

The--

Justice Ginsburg: Mr. McConnell, may I ask you a question directed specifically to religious activities and the state of our precedent?

Is there any decision so far that has authorized a direct cash contribution from the State organ in support of a religious activity?

Mr. McConnell: --Your Honor, I think that the closest case to that is the Witters decision, in which direct cash payments were made for vocational education at the Inland Empire School for Bible for courses in biblical studies and training to become a minister.

Justice Ginsburg: Not for a purpose directed by the State, that is, vocational education, but for a pursuit that the religious group... that the group engaged in an avowedly religious activity has charted for itself.

I don't... I'm not aware of such a case.

Mr. McConnell: Well, Your Honor, in this case, the University of Virginia is not channeling money to religious groups.

It is trying to support the activity of students writing and editing and distributing newspapers.

Justice Ginsburg: Well, I just... Mr. McConnell, I just wanted to know if there was any precedent.

You gave me the case where the State was supporting vocational education, and you said, that's the closest case to this one.

Mr. McConnell: And Your Honor, I'd like to urge you that that is in fact a very close parallel, because... and there the State was supporting vocational education.

Here, the State is supporting student journalism, and in both cases the State is completely, or should be, completely indifferent as to whether the individuals who benefit or participate in those programs themselves decide to participate, to use those benefits in a way that participates in a religious activity, because the establishment--

Justice Souter: There's a distinction in this case, because the claim is that the very nature of the publication itself is an espousal of religion.

It is, in your phrase, a religious activity, so there's nothing left to chance here.

Mr. McConnell: --But, Your Honor, the very activity in Witters was a religious activity, too.

Witters was engaged in learning about... he was studying a religion, in a deeply, pervasively religious way.

The point is that the establishment--

Justice Souter: Well, is it your point that so long as the criterion for giving out the aid is at a sufficiently high level of generality that it does not identify religious purpose as its object, e.g., funds for education, funds for publications, that that is the end of the inquiry about a possible establishment violation?

Mr. McConnell: --Yes.

To use this Court's words in Texas Monthly, when a subsidy is distributed to a broad array of organizations, both religions and secular on the basis of objective criteria, the fact that some of the aid may go to religious advocacy does not violate the Establishment Clause.

Justice Scalia: Unless it's a gerrymander.

You do make that exception.

Mr. McConnell: That's right.

Justice Scalia: You could have it at a very general level, but if, in fact, the way it winds up is that all the money is going to one sect, that might be a different situation.

Mr. McConnell: But here, of course, there is an extraordinarily broad array of groups.

Justice Souter: On your criterion, then, if the State were to dispense funds for moral betterment, it could make direct cash payments to any organized religious group.

Mr. McConnell: Your Honor, if a group--

Justice Souter: Well, isn't that the--

Mr. McConnell: --I do not think--

Justice Souter: --consequence of what you just said?

You said, if the level of generality is high enough so that we know the object, absent a gerrymander, is not a peculiarly religious object, that makes it okay.

Mr. McConnell: --No, Your Honor, because in order to administer that category, money to morally uplifting groups, the Government would have to decide whether a religious group is in fact morally uplifting.

I fully agree that such an inquiry on the part--

Justice Souter: Well--

Mr. McConnell: --of the Government is unconstitutional.

Here, the only thing that the Government has to determine is--

Justice Souter: --Let's make it a little easier.

Instead of saying, as you were putting it, morally uplifting, those which simply espouse the pursuit of action based on moral grounds.

One ought to act morally responsibly.

That's the only criterion.

That isn't going to require very much by way of inquiry, and I take it on your reasoning that direct cash payments could be made to any church group on that theory.

Mr. McConnell: --Well, Your Honor, in Lamb's Chapel, the--

Justice Souter: Well, Lamb's Chapel, what about your theory?

Isn't it the case that on your theory the direct payments could be made?

Mr. McConnell: --Your Honor, so much depends upon... it depends upon the practice with which such a category was administered.

If, in fact, that meant that virtually anyone who espoused any views that was remotely related to the good life received money, I think that would be fine, but if in fact it meant that the Government was engaged in a searching, case-by-case inquiry, deciding this group promotes the moral life and this group doesn't, then that kind of selective funding I think would be unconstitutional, and religious groups could not be included, because then the Government would be putting its imprimatur upon particular religious views and saying these are good views.

Here, the only thing that's going on is that the Government has found that this is a student news, opinion, entertainment, or academic media group.

That is not an entangling form of category.

Justice O'Connor: Mr. McConnell, would your theory mean that the case of Regan v. Taxation With Representation have to be decided differently if the tax code provided that organizations engaging in religious activities would not be able to receive tax deductible contributions?

Mr. McConnell: The... where the tax code has exempted... provides tax exemptions for essentially the entire nonprofit charitable world, if there were an exclusion of charities that espoused religious views, I think that I would be here contending that that's unconstitutional.

The... as I was saying, the religious nature of the students is what makes this a case different from cases that even the university concedes are correct about prohibiting discrimination on the part of viewpoint.

Now, there are two ways in which the religious character of their viewpoint might be considered relevant.

One is the university's position, which is to draw the line between religious and nonreligious is not viewpoint discrimination.

Because it seems to me that that is plainly foreclosed by this Court's unanimous decision two terms ago in Lamb's Chapel, I would like to turn instead to the arguments not endorsed by the university today, but which were the basis of the Fourth Circuit's judgment below.

That is--

Justice Souter: Before you do that, may I just ask you one question about your understanding of the way the regulation would apply?

Would funding be denied, as the reg is written, to an organization espousing atheism?

Mr. McConnell: --Your Honor, I think it would.

Justice Breyer: What prevents the... are you saying the Constitution would prevent the university from deciding to teach Buddhism unless they also wanted to teach Hinduism, or the university's newspaper, edited by students, to decide that they want to print liberal articles but not conservative articles, or articles involving, say, Buddhists but not Hindus, or whatever?

I mean, how does that interest in a university to edit, decide how it spends its money, or decide what's important for students to hear, how does that fit in to your First Amendment analysis?

Mr. McConnell: Well, Your Honor, absolutely fundamental to our position is the distinction between the Government's own speech, either through its employees or through grantees--

Justice Breyer: These are State universities.

I'm assuming State universities.

Mr. McConnell: --Yes, but even with... Your Honor, even within the context of a State university, the State university is in some cases speaking itself, and in other cases it is providing a platform or a means for private speakers to be able to speak their own minds.

That distinction is central to our position, and it is our view that the Free Speech Clause protects private speech where the content and viewpoint are initiated by the private speakers, that it protects private speech against viewpoint-based discrimination whether it's... the speech is religious or nonreligious.

Justice O'Connor: But maybe the Government wants to sponsor and speak through the views of private people but only on subjects that the Government wants spoken about.

Mr. McConnell: Yes, Your Honor.

Unknown Speaker: And the line is pretty hard to draw, isn't it?

Mr. McConnell: Your Honor, we absolutely agree that the university, that the Government, when it chooses to present its own message through private speakers by funding those speakers on account of their espousing the Government's message, that in those cases the Government's... the Government may take a viewpoint.

It can espouse an antismoking campaign without funding a prosmoking campaign.

Justice O'Connor: Is that possibly what's going on here?

Mr. McConnell: Absolutely not, Your Honor.

The university has been completely clear that in its funding of student groups it means it does not endorse the groups, it does not agree with them, it doesn't even allow them to use the University of Virginia's logo.

It has separated itself to the maximum possible extent from the content of these groups, and of course, the groups themselves that are funded--

Justice Scalia: And a good idea, too, if you read some of them, right?

Mr. McConnell: --I--

Justice Breyer: But what they say that they're doing is, they're funding educational activities by students, and they don't want to fund noneducational activities.

Why can't they do that?

Do they have to fund every activity?

I mean, why can't they?

Mr. McConnell: --Your Honor, and they've made the further determination that the... that writing a student newspaper is an educational activity.

That is, the act of writing, editing, distributing, reading, engaging in ideas, is itself an educational activity, not because the content of the newspaper is educational, but because the activity of engaging in student journalism is itself educational.

That's why you can have an animal rights oriented newspaper, and you can have a meant-eaters oriented newspaper on the same campus.

It isn't that one of those views is better than the other, it's that the participation in this activity is itself educational.

Justice Ginsburg: Mr. McConnell, what about the university's having in mind student cases that are coming up around the country, students who say, I don't want my money, I don't want my activity fee to support something with which I disagree?

One of the amici presented those cases to us.

If this activity were to be supported, would the university not have to allow all the people who don't want their money to support a religious activity to get a deduction?

Mr. McConnell: Your Honor, the lower courts have been split on these questions, and some have said yes, but they have said yes with regard to controversial political speech, too, so that a person opposed to abortion is not required to contribute, or may get their portion of the student activity fee back that goes to the prochoice campaign.

There's been no distinction between controversial religious and political speech.

Now, other courts have upheld these programs and not allowed a right to refund on the theory that so long as the university is funding a broad array of viewpoints of all sorts that no student is being required to support any particular viewpoint, and that it's much like, you know, taxpayers supporting postal subsidies, or supporting public libraries that contain books that they don't agree with.

Justice Ginsburg: Well, what about the student who says it isn't like the post office because when we're dealing with the Establishment Clause, this Court has recognized a right that is not recognized in any other area, that is, Flast v. Cohen, where the taxpayer can challenge the use of her money to support a religious activity.

We don't allow taxpayer's challenges any place else, and so a student might say, even if I can't complaint about my dollars going to some political group with which I disagree, I can make that complaint with respect to a religious activity.

Mr. McConnell: Well, Your Honor, all the courts that have accepted this claim have in fact allowed students to object to controversial political claims, though all of the cases have involved secular speech, and in cases like Aboud in this Court, this Court has recognized a right of people not to be compelled to support secular speech with which they disagree.

In this context, religious and secular speech, it seems to me, are the same.

Now, I don't know whether the university should be required to give refunds or not.

I'd be perfectly content for objecting students to receive refunds if they object to some of the speech.

The point is that the university may not use its power to skew the marketplace of ideas at the University of Virginia by favoring some viewpoints over others.

Justice Kennedy: Mr. McConnell--

Mr. McConnell: If individual students want to do that, fine.

Justice Kennedy: --a new subject, and I know your time is about to expire.

You may want to reserve some time for rebuttal.

Is it your position that the State can never recognize that there may be a gray area where we're not sure that there's an Establishment Clause or not, and use that determination as a ground for withholding support from the activity?

Mr. McConnell: Your Honor, I wouldn't say never, but I would say that where citizens have a free speech or free press right, a constitutional right under the First Amendment, the university can't... cannot defeat that right or deny that right on the basis of some nebulous fear of violating another provision of the Constitution.

Indeed, it is not at all clear to me why one clause of the Constitution should be read to trump the other clause to begin with.

It seems to me much more sensible to take a step back and look at how the Establishment Clause and the Free Speech Clause and the Free Exercise Clause can be read as a consistent and harmonious whole, all of them designed to guarantee a neutrality between religion and its various ideological competitors in the marketplace of ideas.

So that that way, instead of having the strange situation in the Fourth Circuit where the... where my clients were held to have had a free speech right but the Establishment Clause trumps that right, instead, the enterprise of the First Amendment can be interpreted in a consistent fashion.

I would like to reserve the remainder of my time for rebuttal.

Argument of John C. Jeffries, Jr.

Chief Justice Rehnquist: Very well, Mr. McConnell.

Mr. Jeffries.

Mr. Jeffries: Mr. Chief Justice, and may it please the Court:

This case is not specifically about religion.

It is about funding, and the choices that inevitably must be made in allocating scarce resources.

Some funding decisions do not involve speech, but in a pubic university virtually all of them do.

In public education, funding speech based on content is legitimate, routine, and absolutely necessary.

Under the university guidelines--

Justice O'Connor: But not based on viewpoint, I take it.

You would agree with that.

Mr. Jeffries: --I do.

Under the university--

Justice O'Connor: So this boils down to whether this is a viewpoint case?

Mr. Jeffries: --I do think that's exactly the heart of the question, and if I may just clear up one issue that was left over from the earlier colloquy, under the university's guidelines, the definition of political activity, which is defined to mean lobbying or electioneering, and the definition of religious activities are not exactly alike, but they raise precisely the same constitutional question.

Imagine that students organized themselves in support of the President's reelection campaign, and published a Clinton reelection newspaper.

That would be an electioneering activity.

We would not fund it for that reason.

Imagine that students lobby the State legislature to pass or defeat the balanced budget amendment.

That would be a lobbying activity.

We would not fund it for that reason.

Students have a constitutional right to support the reelection of the President.

They have a constitutional right to lobby the legislature.

They have a constitutional right to advocate their religious beliefs.

All of these cases present precisely the same free speech issue, and they stand or fall on that basis.

Justice Scalia: But as I understand, Mr.... I'm sorry.

Chief Justice Rehnquist: Mr. Jeffries, take a look at... on page 66a of the petition, the number 3 parenthetical in the carryover paragraph on page... where it's talking about political activity, and apparently excepted are student organizations which espouse particular positions or ideological viewpoints.

That would not include political positions?

Mr. Jeffries: The intent of the guidelines is to allow in the political area a wide variety of point of views, and to except two fairly narrow categories, electioneering, by which I mean publication devoted expressly to an election result, hence the Clinton campaign newsletter, and lobbying legislatures.

Chief Justice Rehnquist: Well then, suppose you have a newspaper that simply espouses the Republican point of view, or the Democratic point of view.

Just as a more or less... liberal versus conservative, whatever you want to call it, but it has party identification.

Is that permitted?

Mr. Jeffries: Liberal and conservative points of view are freely permitted.

Indeed, all points of view are permitted.

The question is, which are funded--

Chief Justice Rehnquist: Yes.

Mr. Jeffries: --and the exclusion from funding would be those activities so closely allied with an election result as to be found to be electioneering.

Chief Justice Rehnquist: So that some might say the Americans For Democratic Action, or something, a liberal group which consistently supports Democratic candidates but doesn't really electioneer for them, they could be funded?

Mr. Jeffries: Yes, sir, would be eligible for funding.

Justice Scalia: Now, why is that different from a group that is not trying to recruit people to a particular Christian sect, but simply espousing the truthfulness of certain Christian doctrines, just as this other group, while not trying to get you to vote for a particular candidate, is espousing the truthfulness of that candidate's position on a lot of issues?

I don't see a distinction.

Mr. Jeffries: The guidelines make that distinction.

My point in suggesting that these raise the same constitutional issue was to say that in all three categories, electioneering, lobbying, and religious activities, the guidelines say, rights which people have a constitutional right to engage in, activities which people have a constitutional right to engage in, we nonetheless will not fund.

If that's an unconstitutional action in refusing to fund religious activities under the Free Speech Clause, it must follow that it's equally unconstitutional to refuse to fund the Clinton campaign reelection newsletter or to refuse to fund students engaged in lobbying activities under the Free Speech Clause--

Justice Scalia: I'm talking about different things.

I'm talking about refusing to fund for religious publications simply the espousal of general ideas, without identification of a particular sect, without proselytizing, whereas in the political context, so long as you don't proselytize, so long as you're not electioneering, it's okay.

Why is it... why is there that distinction?

Mr. Jeffries: --Why do the guidelines make the distinction they make?

Justice Scalia: You acknowledge that they make that distinction.

Mr. Jeffries: The guidelines--

Justice Scalia: Now, you used to say the reason they make it is, the Establishment Clause made us do it, but you're not taking that position today, right?

Mr. Jeffries: --Obviously, if the Establishment Clause forbids us from giving direct aid to religion, there is an end to the matter, but we do not stand on that ground.

We take the following position.

There is in this country a long and honored tradition of financial disengagement... again, this is a question of funding, not activities.

There is a long tradition in this country of financial disengagement between church and State.

We think it's entirely reasonable for the university to adhere to that tradition.

Justice Scalia: This is not a church, though.

I mean, if you're... you know, if your point were, we will not fund any church organization that publishes something, that's fine, but that's not what these guidelines say.

It says, any organization that espouses that viewpoint.

What's the term it uses?

Mr. Jeffries: With respect, Justice Scalia, the plaintiffs were not denied eligibility as a religious organization.

They are not a church, and they were not denied funding on that ground.

Justice Scalia: Yes.

Mr. Jeffries: They were denied funding because the publication of this magazine was found to be a religious activity, a conclusion that they have not... never contested.

Justice Scalia: Because it manifests a particular belief in or about a deity, right?

Mr. Jeffries: Because it primarily manifests a particular belief in or about a deity, yes, sir.

Justice Kennedy: But that is different from lobbying and campaigning.

Your premise that you're submitting to us is that because it is permissible to withhold funding from active campaigning in the political sphere, therefore it is permissible to hold... to withhold funding for abstract discussions of religious views, and it seems to me the two do not follow at all.

Mr. Jeffries: Well, in my judgment, Justice Kennedy, the cases on which the petitioners rely are quite consistently free speech cases.

If the Court had meant to specify something special about religion, it probably would have relied on the Free Exercise Clause, so the inference which I made is that under the Free Speech Clause, lobbying, electioneering, religious activities are all protected, and all comparably protected under the Constitution.

Justice Kennedy: But the university can say that these are not educational activities, and draw the line there.

But it doesn't follow that it can draw the further line that discussion of abstract views of religion is also prohibited.

It seems to me that that's where your parallelism breaks down.

Mr. Jeffries: It may be misleading to think of the university's policy as refusing to fund a discussion of abstract views.

The university refuses to fund religious activities.

This magazine is a proselytizing activity.

Basically, religious activity means worship services and prayer, or proselytizing, so there is little doubt that this magazine fits the university's guideline.

Justice Kennedy: Well, do you take the position that any discussion of religious views is proselytizing?

Mr. Jeffries: No, sir.

Justice Scalia: That's all your guidelines say, manifests a particular view.

If you primarily manifest a particular view relating to, in or about a deity, you're out.

Mr. Jeffries: That constitutes a religious activity.

Let me try to answer the rest of your question, if I may, Justice Scalia.

In addition to the longstanding tradition of financial disengagement between church and State, in this particular area, we feel there's a very strong concern.

By denying all religious activities university funding, we avoid having to choose among them.

How would you choose among them?

Justice Breyer: Is the giving of religious instruction a religious activity that calls... makes it outside the funding?

Mr. Jeffries: Our policy on that is exactly the policy reflected in the Religious Studies Department.

We study--

Justice Breyer: I mean, for example, if what... this magazine has articles in it that says Christianity and the five-legged stool, and then it says, for example, how you should lead a holy life, spread the Gospel, make social justice, follow the Holy Spirit, and pursue intellectual excellence, all of which are fine, but is that type of article the kind of article that falls outside funding, and why, precisely?

Mr. Jeffries: --Funding decisions, Justice Breyer, are not made on the basis of articles or columns or particular essays.

Justice Breyer: No, but I mean, the character of the magazine.

Mr. Jeffries: Yes, sir.

Justice Breyer: If the magazine did not have such articles, but only said, we have a religious point of view involving certain social issues, certain educational issues.

Would it then qualify for funding?

I'm trying to get the distinction as to what makes it a religious activity and what doesn't--

Mr. Jeffries: The distinction--

Justice Breyer: --in terms of this magazine.

Mr. Jeffries: --On these facts, we think that distinction is clear.

A magazine which is devoted in all of its content to proselytizing specific religious beliefs is a religious activity under the guidelines.

Justice Scalia: I don't know what you mean by proselytizing.

That's not what the guideline says.

It says, manifests, promotes or manifests.

Now, suppose you had a magazine that just said, we want to set forth the Christian or the Muslim or the Jewish point of view on social issues.

It's called, Commentary.

You know--

[Laughter]

--Student Commentary, or something like that.

It's all about social issues, but it intends to bring a distinctively, to manifest a distinctively religious point of view about all the social issues.

Wouldn't that be covered by you guideline?

Mr. Jeffries: Let me answer that question this way.

In a standard which depends significantly on the word, primarily... the university guidelines does--

Justice Scalia: Yes.

Mr. Jeffries: --there are inevitably questions of degree, and there may well be close cases, and there may well be a line-drawing problem down the road.

Now, I will say, we've not had that problem before this litigation.

But in this case, the fundamentally, consistently, in the word of the Fourth Circuit, the unflaggingly religious character of the publication has never been contested or denied.

Justice Kennedy: Mr. Jeffries, suppose that a student newspaper decides that regular columns are good for the newspaper.

Readers like them.

Mr. Jeffries: Yes, sir.

Justice Kennedy: And it said, we want good writers, and we want four regular columns, and they have a survey of the best writers, and one of them is a religious writer, a Christian writer, and that's all he writes about in the column.

Can the university promulgate a guideline to withdraw funding by reason of the printing of that column?

Mr. Jeffries: We have not attempted to promulgate such a guideline.

Justice Kennedy: Can the university constitutionally do it under the First Amendment?

Mr. Jeffries: I doubt it.

Justice Kennedy: Why is this case any different?

Mr. Jeffries: We have... the standard, as I see, under the decisions of this Court, is basically a standard of reasonableness.

Public money cannot be a public forum.

There cannot be a right of access to the budget of the University of Virginia.

So the standard is that of Perry Education Association and other cases, and that standard says that the approach must be reasonable, and it must not reflect an effort to suppress expression because public officials oppose the speaker's view.

Chief Justice Rehnquist: But isn't there a difference between when the university decides, you know, what kinds of subjects to teach, say, in its Department of Religion, where it's putting out its own message, and where the university says, we're going to fund all sorts of student activities, and we're going to disassociate ourselves from their message?

Mr. Jeffries: Mr. Chief Justice, the university does not fund all sorts of student activities.

They fund some broad categories, and there are other broad categories that are excluded.

The funds we're talking about here are raised by mandatory fees.

They're exactly like tuition and taxes.

They're distributed by a budgetary process, by an official decisionmaking process, just like money raised from tuition and taxes.

Chief Justice Rehnquist: But they aren't devoted to espousing something that might be called, the university's point of view, or the university's idea of what education should be.

Mr. Jeffries: That is entirely correct.

They're not... well, the first part is entirely correct.

They are not devoted to espousing a particular point of view.

They are devoted... in funding, now, not access, they are devoted to those activities which in the judgment of the Board of Visitors are consistent with the educational purpose of the university, and there are several categories that are in, and there are several categories that are out, religion being one of the out categories.

Chief Justice Rehnquist: But according to a case like Widmar v. Vincent, where you're talking about student activities like this, you can't exclude religion.

Mr. Jeffries: Mr. Chief Justice, Widmar makes explicit reference to the fact that it is not intended to apply to funds.

Chief Justice Rehnquist: So you say providing space, or facilities and lighting and so forth, in doing that the university can't discriminate, but if instead of that it decides to make cash payments, it can?

Mr. Jeffries: That's exactly right, and the university does not discriminate in any way.

These plaintiffs have full access to university facilities.

If I may just explain why that--

Justice Scalia: Well, you could really help these people out and even the playing field by not distributing your student activity subsidies in cash, just provide printing presses for all these organizations.

Then it would be okay to give these people what they want.

Mr. Jeffries: --Justice Stevens said in Widmar that if access were short, that is, if it needed to be rationed, that would warrant the university giving access on the basis of the content of speech.

The distinctive fact about higher education, and about public education generally, is that owing to the demand at peak hours, classroom space always is in abundant supply after hours, so on the facts of Widmar, on the facts of Lamb's Chapel, there is no need to ration anything.

It's a benefit that can be provided at practically no marginal cost.

Justice O'Connor: Well, what if the activity involves a controversial speaker and providing facilities to take care of that?

That can cost a lot of money.

I'm not sure that providing access to facilities is cost-free.

Mr. Jeffries: It has been practically so in our experience.

I agree with--

Justice O'Connor: But it might not be.

Mr. Jeffries: --Yes, ma'am, and I agree with Justice Stevens that if access needed to be limited either because of cost or because of a lack of physical space, that would present a very different case from what was presented in Widmar or what was presented in Lamb's Chapel.

Funding must--

Justice Scalia: And you could say, because there's a shortage of space we're going to decide religious organizations are at the end of the line?

Mr. Jeffries: --If there were a shortage of space that would present a--

Justice Scalia: That's what Widmar stands for?

Mr. Jeffries: --a very different question.

Chief Justice Rehnquist: You're relying on Justice Stevens' separate opinion in Widmar for that?

Mr. Jeffries: For that point, I am.

[Laughter]

Justice O'Connor: I mean, I would have thought the First Amendment would indicate that if you have to restrict access it ought to be on some neutral ground.

We're not going to provide access if to do so requires us to spend a lot of money.

Mr. Jeffries: And we do not restrict access, so to the extent that the concern is about access, these plaintiffs have no quarrel with us.

This entire case involves the question of whether we write them a check.

Now, Justice O'Connor, very early you asked me a question which I'd like to get to.

I think it's the heart of the case.

As I hear the petitioners, they more or less concede that in giving out scarce money, judgments just inevitably be made.

Choices must be made, there must be priorities, so that the major ground of dispute here is their claim that the university's guidelines are guilty of antireligious viewpoint discrimination.

That is not true.

The university funds, not opinions or viewpoints, but activities.

The university does not fund religious activities.

The university does not fund antireligious activities.

If there were a journal of antireligion, if there were a journal devoted primarily to denying the existence of a deity, we would not fund it, it would not be eligible for funding, and it would not be eligible on precisely the ground that Wide Awake is not eligible.

If there were an anti-Christian newsletter devoted primarily to denying the tenets of Christianity, we would not fund it, it would not be eligible for funding, and it would not be eligible for funding on precisely the ground that Wide Awake is not eligible for funding.

Justice Kennedy: What about secular humanism?

Mr. Jeffries: A journal devoted to secular humanism?

Justice Kennedy: Yes.

Mr. Jeffries: As far as I know from the name you've given it, that would be fine.

I confess, I'm never sure that I know what secular humanism is.

[Laughter]

Thank you.

Justice Souter: If secular humanism says, we take this position because all religion is rot, you wouldn't fund it.

Mr. Jeffries: If it were primarily devoted to the all-religion-is-rot position, it would qualify as a religious activity under the guidelines and would not be funded.

My point in emphasizing this is to make a statement to you that the University of Virginia feels very strongly about.

We are not picking out a religious point of view and trying to suppress it.

Justice Scalia: No, but you're picking out theology.

I don't know that you would try to justify the exclusion of some other area of thought, or discussion, or belief, by saying, we're excluding this entire area, both those who like it and those who don't like it.

Mr. Jeffries: Yes, we do exactly that, Justice Scalia, with respect, for example, to lobbying and electioneering.

In all these areas, we do the same thing.

Chief Justice Rehnquist: Could the University of Missouri in Widmar have said, we're going to deny access to this religious group to these rooms, and we're also going to deny access to any antireligious group, but we're going to give it to everybody else?

Mr. Jeffries: Mr. Chief Justice, my understanding of the Widmar and Lamb's Chapel line of cases, which say that so long as they have a surplus of rooms, so long as there is no need to ration access to them, so long as everyone can be accommodated, those exclusions--

Chief Justice Rehnquist: Well, did the Court opinion in Widmar stress those facts?

Mr. Jeffries: --No, sir, it did not, but you have to read Widmar and Regan at the same time.

If those facts are not stressed in the Widmar opinion... and, by the way, I think I spoke too quickly, Widmar does say, and this is the majority opinion, nor do we question the right of the university to make academic judgments as to how best to allocate scarce resources, which is what we're dealing with here.

Widmar does say that, but more importantly, Regan is a unanimous decision of this Court.

Regan concerns funds and, frankly, we think Regan and our case are on all fours.

Justice Souter: Could I go to a question peculiar to funds?

Your opponents say that your argument there is specious, because you rely upon cases in which the Government is deciding, as it were, to speak for itself, and it can decide what speech to make, whereas the University of Virginia is not speaking for itself, it is funding the speech of others, and it is because of that distinction that it cannot make the distinctions that you draw.

What is your response to that?

Mr. Jeffries: Justice Souter, the university pays my salary.

It's not true that I represent in the classroom any particular university point of view, it's not true that I am a spokesman for a particular campaign, but it is certainly true that the university is not indifferent to what I do there.

In other words, in the classroom there is a very broad range of educational speech that is funded, but that's not to say that all speech is funded.

Exactly the same is true of the student activities fees.

Is that responsive?

Justice Souter: In effect you're saying, any subject matter distinction can be made, and it doesn't matter at the point in time, or the point in the legislative process at which the Government says, this is my speech as distinct from, this is what I will pay for.

Mr. Jeffries: Any distinction can be made, so long as it meets this Court's standard of being reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.

Justice Breyer: Suppose that there's a magazine put out by hobbyists, or by fraternities, and the magazine has some articles devoted to how wonderful it is to live at theta beta whatever, or how to build model air planes, but several other articles have to do with issues on campus from the point of view of the fraternity, or issues on campus from the point of view of model airplane builders.

Now, does that get funding, or not?

Mr. Jeffries: Insofar as it's put out by fraternities, I feel confident--

Justice Breyer: There are a group of people who happen to belong--

[Laughter]

--to fraternities, or they build model airplanes, and what they do is, they put out the magazine I was talking about.

Mr. Jeffries: --It is eligible to be considered for funding.

Justice Ginsburg: Mr. Jeffries, if we don't accept your distinction placing this closer to the Government choosing what subjects it wants discussed, and we do accept that it's Government facilitating speech of others, not its own choices, you... how would you address the establishment objection that you've assiduously stayed away from in your brief?

Suppose we reject your position on the free speech side of it?

Let me try to state as clearly as I can, since the briefs are so different in their emphasis on the Establishment Clause, what we think the relevance of that question is to this case.

Petitioners say that the fact that this case involves funding doesn't matter at all, and they rely heavily on access cases, Widmar, Lamb's Chapel.

Mr. Jeffries: We say the fact that this case involves scarce dollars is decisively important, and we rely very heavily on Regan, and also on Rust v Sullivan.

From petitioner's point of view, the Establishment Clause is a grave problem, because there are many decisions of this Court stating that where religion is involved funding does matter, that it matters quite a lot.

So petitioners are essentially coming to the Court and saying either that a lot of past Establishment Clauses need to be distinguished within an inch of their lives, or they need to be overruled.

That is, as you can tell from the exchange, including the exchange among religious amici, that is a controversial proposition, but it is only the first step in petitioners' argument.

Petitioners not only want this Court to overrule Establishment Clause cases and permit Government to give direct aid to religious activities where other activities get such aid, petitioners want to go farther.

They want to take a second step which is truly radical, to say that where other activities get Government aid, Government must fund religious activities.

Petitioners want to go--

Justice Scalia: --You think that's a major step, a major--

Mr. Jeffries: Oh, yes, sir.

Justice Scalia: --additional step?

Mr. Jeffries: Yes, sir.

Justice Scalia: The step between providing a classroom and providing the money to rent a classroom you think is really--

Mr. Jeffries: The step--

Justice Scalia: --a step off a cliff.

Mr. Jeffries: --Access to a budget is a major step.

Justice Scalia: But the classrooms are bought with budget money, certainly.

Mr. Jeffries: Yes, sir, and they are, once they're there, virtually cost-free to allow two classes or three classes as opposed to one or two, virtually cost-free.

No practical significance to that.

Justice Scalia: Well, that may affect the fisc.

I can understand how those who are interested in a balanced budget may be concerned with that distinction, but I don't know how those who are interested in unconstitutional support of religion see a great difference between providing that assistance in cash or that assistance in some other... in some other means, whether it's cost-free or not.

Mr. Jeffries: May I try to identify the consequences?

If, as petitioners claim, Government funding of speech activities must be accompanied by Government funding of religious activities, if that's true, all of public education as we know it is unconstitutional.

Every public school in America at every level in every State does what we do.

They fund speech--

Justice Kennedy: But of course the only justification for your using the word, religious activity, is because of the special way in which this regulation defines it.

What we're talking about here is religious speech.

That is different.

Mr. Jeffries: --Different from--

Justice Kennedy: Religious activities and religious exercises.

Mr. Jeffries: --Well, our definition of religious activity is stated in the guidelines that's been quoted to you.

It includes activities, and the activity here is the publication of a magazine, and that involves religious speech.

Maybe I'm missing your point.

Justice Kennedy: The only thing that's at issue here is religious speech, not religious exercise.

Mr. Jeffries: Justice Kennedy, you're drawing a distinction that I do not clearly apprehend.

Justice Breyer: Well, if for example you have a person who does... a Republican and a Democrat and an Episcopal minister all give exactly the same speech about the homeless problem, one from a Republican point of view, one Democratic, and one says I'm a minister and I have my own experience.

The speeches are identical.

Mr. Jeffries: Yes, sir.

Justice Breyer: You fund the first two but not the third.

Mr. Jeffries: We would not be in a position of funding any speech by speech.

That's simply not the--

Justice Breyer: They write it a news... they write it in a little magazine.

Mr. Jeffries: --All those may be published, and they all may be published in a newspaper which publishes lots of points of view.

Justice Souter: And isn't it the case that when you were using religious speech in this argument, and when Virginia is deciding what it means to fund, specifically when Virginia uses the word manifest, aren't you, in each instance, talking about speech which does not merely explain a point of view, but espouses it, speech which in effect recognize the difference between, this is a way of thinking, and speech which says, this ought to be your way of thinking.

Isn't that the distinction that is implicit in your entire argument, and in these guidelines as you read them?

Mr. Jeffries: Yes, sir, and as those guidelines are applied, they focus for the hallmarks of a religious activity on observances or proselytizing, which we do not wish to fund.

Justice Scalia: Was there a finding of proselytizing intent as the basis for the... I don't find that anywhere in the record.

I think manifest means manifest.

Do you mean that it would be okay if this group said, we're not going to try to convert anybody, we just want to explain why Christian viewpoint provides certain consequences on a whole range of public issues?

Mr. Jeffries: The opening--

Justice Scalia: Would that be accepted?

The university will accept that publication?

Mr. Jeffries: --It might be, depending on the facts more carefully defined.

The magazine--

Justice Souter: Oh, but in theory, it would.

I mean--

Justice Scalia: --You have to say yes if you're going to answer Justice Souter the way you did.

Mr. Jeffries: --The only reason I haven't said yes is because I don't know enough about your hypothetical magazine to have a confident reaction to it.

Justice Souter: It may be tough to identify it as one or the other, but the distinction is a distinction that the university would honor, isn't it?

Mr. Jeffries: And that is... yes, sir, exactly.

Justice Scalia: And the university would... who wrote these regulations for the university, then?

The university would consider that that... such a publication does not manifest a particular belief?

It's whole basis is, Christianity provides these answers to a whole range of certain... that magazine does not manifest a particular belief?

Mr. Jeffries: I think the best answer I can give you is that the magazines in the record do manifest a religious belief.

The letter from the editor in the inaugural issue says that its mission is to challenge Christians to live in word and deed according to the faith.

Thank you, sir.

Rebuttal of Michael W. McConnell

Chief Justice Rehnquist: Thank you, Mr. Jeffries.

Mr. McConnell, you have 1 minute remaining.

Mr. McConnell: Mr. Chief Justice, I'd just like to conclude with a practical observation about the real impact of... on free speech of the Government's use of the power of the purse.

Effectively, Ronald Rosenberger and his fellow students were enabled to put together a newspaper, and there's a carrot dangling in front of them, and the carrot has attached to it something about their speech, that they can address issues if they want to, but if they want to receive the carrot, they have to do them in a particular way.

They have to censor their own religious viewpoints, they have to make sure that they don't quote from one book, the Bible.

They could quote from others.

They have to--

Justice Souter: I don't think that's what your brother is saying.

I think what your brother is saying is, they cannot cross that line between saying, this is the Christian viewpoint, and this ought to be your viewpoint.

Now, that may be a tough line to draw.

He certainly admits it.

But that, it seems to me, is the only censorship that we're talking about.

Mr. McConnell: --Your Honor, if their viewpoint were secular, they're certainly entitled to write a magazine saying, this is our viewpoint, and you should share that viewpoint.

Animal rights groups are doing precisely that.

Feminist groups are doing precisely that.

Every other group is permitted to proselytize, which I'd just like to note is nothing but an ugly word for persuade, which is just exactly what the Free Speech Clause is designed to protect.

Justice Souter: They like the word manifest.

[Laughter]

Chief Justice Rehnquist: Thank you, Mr. McConnell.

The case is submitted.